THE BIZARRE PROCESS OF LAW-MAKING IN INDIA.

[ DISCLAIMER--I welcome the imperfect amendment to the Juvenile Justice Act approved by Parliament on 22nd October. Not because of what Mr. Subramaniam Swami says on TV or what Nirbhaya's poor mother says at India Gate, but because of what the the NCRB ( National Crime Records Bureau) says: in 2014, of 2144 rapes committed by juveniles 1488 or 70% were perpetrated by those in the 16-18 age group; of 1163 murders by juveniles, as many as 844 or almost 75% were committed by youth in this age group. It was incumbent upon society, therefore, to revoke the immunity from punishment for such heinous offences that this age group enjoyed so far. But I do not agree with, or approve of, the manner in which this legislation was hurriedly passed.]

     The primary function of Parliaments anywhere is to formulate and approve laws for the betterment of a country. It is further expected that since such laws would inevitably affect the lives of millions of citizens, and since they cannot violate any constitutional provisions, Parliament would subject such laws to the most stringent scrutiny and debate before passing them. In the India of today both these presumptions would be mis-placed and wrong. The amendment to the JJ Act establishes this unequivocally.

     The Lok Sabha and the Raj Sabha have, over the last few years, been failing in their primary function of legislating laws that have an effect on the vitals of our society. Both during UPA-2 and the first two years of the NDA govt. Parliament has been used more for settling political scores, posturing for elections and trading charges than for any constructive legislative work. The important work of legislating has been outsourced to either the Courts or to Jantar Mantar.

   Both our Houses are in a chronic state of inertia and congenitally deaf to the demands and needs of of a rapidly changing society. They wake up only when the voices from Jantar Mantar or India Gate, combined with the bursting of tear gas shells, come too close to their privileged comforts, or when the censures from the Supreme Court can be ignored no longer. Parliament's legislative record over the last few years bears ample testimony to this.

  The laws relating to rape in the IPC were amended only after the unprecedented protests in 2012 led to the recommendations of the Verma Committee. Section 66 A of the Information Technology Act, long used by all governments to intimidate and brow-beat those who thought differently, was given the quietus only after it was struck down by the Supreme Court. The perversity of treating attempted suicide as a criminal offence was emphasised so strongly by the courts that the Government has had no other option but to prepare an amendment to the relevant section of IPC to decriminalise it. The Whistle Blowers' Act has been drafted under the constant and not so gentle prodding of the Supreme Court again. ( Incidentally, Parliament has yet to pass these Bills). The same Court, having waited for an eternity for Parliament to provide for disqualification of convicted MPs and MLAs, finally had to wield the hatchet itself and made Mr. Lalu Yadav the prototype of a model which should have a good run in the days to come. And today we learn that the Govt. has endorsed a private member's Bill- the Right of Transgender Person's Bill 2015- which seeks to recognise that these persons too have rights, but only after the Supreme Court's ruling that they constitute a legitimate third sex left them with little choice. The amended Juvenile Justice Act is thus only the latest link in this sorry chain of legislative indolence: its birth was not natural, but induced by protests at India Gate that had the government seriously worried about a repeat of the Nirbhaya tumult three years ago.

  The sloth is so deep seated, however, that notwithstanding constant demands from civil society and persuasive suggestions from the Judiciary, many other societal reforms are held up because Parliament just can't be diverted from its daily dose of blood sports in both Houses. Homosexuality is yet to be decriminalised even though the Delhi High Court in a judgement that does it great credit has held it to be not only legal but also natural and the Supreme Court has hinted that Parliament should repeal this pernicious law. Defamation continues to be a criminal offence even though the press and legal experts have asked that it be limited to a civil cause of action only. Parliament is yet to spare the time to consider making laws for Surrogacy or Physician Assisted Suicide or the Living Will or protection of Internet privacy- concepts which are pushing the frontiers of modern medicine and jurisprudence all over the world, but which have no place in our Parliamentarians' world of subsidised bungalows, cheap mutton cutlets, free air travel and foreign jaunts. They will bestir themselves only when another Anna Hazare appears at Jantar Mantar or another five judge bench of the Supreme Court pronounces on a matter or another Aruna Shaunbag dies after forty years of a vegetative existence.

   Paradoxically, however, Parliament (and state legislatures) are very quick to pass laws when it comes to granting or extending all kinds of reservations and quotas to various communities and classes, even when they clearly violate the red line of 50% set by the Supreme Court. This too, of course, is done under the pressure of violent agitations: I am always amazed at why our legislatures respond with such alacrity to one kind of pressure but not to the other?!

   It is possible that I am being too harsh on our elected "leaders" ( a misnomer, actually, because they have ceased to lead a long time ago, and now prefer to be led by the nose by populism or herded by party whips). Maybe, just maybe, they have discovered the perfect formula for political survival: avoid all controversial issues, don't take a position on any subject which you can't understand or don't  have an interest in( which is most subjects), leave all the hard work and unpleasant decisions to the Courts, and if all else fails, come up with an instant " 2 Minute Statute" not unlike the 2 Minute Maggi Noodles. Conversely, when it comes down to vote bank politics, it perhaps makes equal sense to surrender all sense of constitutionality and pass the dubious legislation, leaving it to the courts ( who else ?) to strike them down.

   This perverse logic may be politically sound but it does no credit to our legislatures. It also contains many inherent dangers. For one, when you make laws under pressure the resultant legislation is likely to be defective; particularly in laws that are penal in nature such flaws can do great injustice to individuals and transgress their freedoms. In recent times such distortions have become evident in the laws relating to domestic violence, rape, divorce, atrocities on scheduled castes, to mention just a few- even the courts have now started pointing these out. Criminal laws, in particular, need to be thoroughly studied, analysed and debated, both within and outside the Legislatures. This cannot happen if Parliament functions under the threat of lynch mobs and apoplectic TV anchors. The amended JJ Act is a case in point. While the lowering of culpable age from 18 to 16 years is welcome, there is a lack of clarity on many issues: what constitutes a " heinous crime"? Are all crimes that carry a sentence of seven years to be treated as a heinous crime? If so, then is the amendment also applicable to non-violent crimes that carry a sentence of seven years? If yes, then does this correspond to the intent of the legislature? The entire responsibility of treating juveniles between the ages of 16-18 years has now been put on the Juvenile Justice Boards, but do all districts have such Boards ( most do not)? Does the system have enough psychiatrists/ psychologists/ counsellors to assess the culpability of these juveniles ( it most definitely does not) ? Such, and many other, doubts should have been addressed before the Bill was passed, but this is no longer the norm in our Parliament. Our MPs will either not consider any legislation, or if they do, then they will pass them post haste without any discussion! Such extremes of perversity are hard to fathom.

  We would all do well to remember that rule of law is the bedrock of democracy. But it does not come cheap- it has to be sustained and preserved, with toil and tears, by every successive generation. We have been fortunate to have received it as a legacy by the stalwarts and visionaries who have come before but it is high time that our law makers stopped squandering it.

COPA 21 AND CLIMATE CHANGE: IS ANYONE TALKING ABOUT THE ECOLOGY ?

    The truest and most visionary statement at COPA 21 in Paris was made by the Indian Prime Minister, Narender Modi four days back. Speaking at the launch of the Solar Alliance he said:

" Convergence between economy, ecology and energy shall define our future."

Never were truer or more prescient words uttered. Mr. Modi has intuitively identified the three driving forces on which the future of this planet rests. And yet, the conference in Paris is focused exclusively on the economy and energy, to the almost complete exclusion of the ecology, a silent backdrop desperately waiting to be addressed. COPA 21 is in effect an economists' forum where the larger natural environment has been given short shrift. Climate change and global warming have been reduced to just two more stock market indices and are being computed only in terms of their impact on GDP percentages, industrial growth, unemployment figures. food production. climate refugees, the optimum mix of energy types, and so on. The only convergence we see is between economists and politicians. Unfortunately, notwithstanding Mr. Modi's words, the Indian position is no different.

   No one is talking about the threat to the natural environment or ecology which has sustained man ever since he crawled out of the sludge millions of years ago: the forests, rivers, wetlands, glaciers, mountains, snowfields, coral reefs, and the flora and fauna that depend on them. The problem has been reduced to a mathematical formulation- 2* C temperature rise, and the solution to a catch phrase- " carbon space." As if the capping of green house gas emissions is all that is required to save the world. What about the rampant destruction of our ecology? Forests which hold the soil, retain water, give us oxygen, absorb carbon: is Paris aware that our existing forests contain more carbon than what is present in the world's atmosphere ? Rivers which nurture civilisations but are being dammed and polluted out of existence ? The polar ice caps which hold 98% of the world's fresh water but where  it is now proposed to drill for oil and minerals? The vast wetlands such as the Pantanal and the Sunderbans which control floods and erosion and provide livelihoods to millions? The mountains and glaciers which which moderate climate and control run-offs ? The coral reefs which not only shelter islands but also provide a unique eco-system for marine life, but are now being obliterated by pollutants and chemicals in the oceans? And finally, what about the mind boggling diversity of animal life which these natural wonders contain, doomed to extinction not because of green house gases but because of our ruthless greed and apathy ?

   Here is what is happening to them:

* The Tibetan plateau is the third Pole, containing 46000 glaciers and covering 100000 sq.kilometers. It is the source of 10 major rivers on whose waters depend 1.5 billion people. They are shrinking at an alarming rate, and could all be gone by the turn of the century.

* Rivers are drying up under the onslaught of dams and irrigation needs: one in 10 rivers no longer flows into the sea for many months in a year. By 2025- yes, in just ten years!- more than 2 billion people would be affected by severe water shortages. Future wars would be fought over water, not oil- disputes have already arisen between India-China, India-Bangladesh, India-Pakistan, not to mention Tamil Nadu-Karnataka and Delhi-Haryana.

* 13 million hectares of forests disappear every year. The Amazon basin has lost 20% of its green cover and Haiti has lost 98%! According to IUCN one third-34%- of the world's conifers are at risk of extinction due to logging and diseases.

* Insatiable consumerism spells doom for our forests. The demand for paper has increased 5 times in 50 years. The world's ever increasing appetite for meat has resulted in thousands of hectares of forests being converted into soya bean and corn fields to feed  cattle. The same destruction is taking place in Malaysia to create palm oil plantations.

* This deforestation is releasing tens of millions of tons of carbon, till now locked up in the trees, into the atmosphere.

* Destruction of habitats and ecology is ensuring that by 2050 one quarter of the world's species will be threatened with extinction- 21000 out of 70000 species of plants and animals are already on IUCN's Red List. We harvest 100 million tons of fish from the oceans every year- much more than nature can restock. 75% of the fishing grounds are exhausted, but there is no holding back avaricious nations like Japan which just last week sent its whalers to slaughter another 400 whales in the Antarctic, even though this has been held to be illegal by the International Court of Justice.

  Notwithstanding Mr. Modi's fine words, this contempt and disregard for the natural ecology is evident in India too, and is getting worse under Mr. Javadekar's dispensation. The regulatory mechanism to protect the environment set up by enlightened individuals and the courts is being dismantelled under the garb of " ease of doing business". EIAs and EMPs are being dispensed with, roads are being allowed in National Parks and Tiger Habitats, the sanctity of buffer zones are being violated, mining is being permitted in hitherto " no go" areas, river-linking projects are being rammed through without any environmental studies, the Forest Rights Act has been deliberately diluted to enable easier diversion of forest land for industry.  The environmental integrity of the Western Ghats has been severely compromised by rejecting the recommendations of both the Gadgil ( 2011) and Kasturirangan ( 2013) Committees' recommendations to declare 67% and 37% of the Ghats as ESA ( Environmentally Sensitive Areas), respectively; by reducing this to 30% the present government has capitulated to the mining and developer lobby, and exposed thousands of hectares of biologically rich natural landscape to rape on an industrial scale: the price will be paid in the years to come by the millions who depend on the ghats for water, climate moderation and forest produce.

  We have done more than our bit to eradicate various forms of animal life too. According to the latest report of the Zoological Survey of India laid in Parliament recently, between 2010 and 2012 India has added 253 species to the endangered list, which went up from 190 to 443 during this period. It must have crossed the 500 mark by now.

 There exist also  major contradictions and disregard for our natural ecology in India's own INDCs ( Intended Nationally Determined Contributions) submitted to COPA21. In these, we have resolved to produce 100 GigaWatts- i.e. 100,000MW- of hydel power by 2025. Our current generation capacity under this head, according to the Ministry's own website, is just 39,623.40 MW. This means that we shall be building additional capacity of 60000MW over the next ten years. This is a frightening thought:creation of the existing capacity of 39000MW has already devastated states like Himachal, Uttarakhand, Arunachal Pradesh ( have we already forgotten the disaster in Uttarakhand and the regular " flash floods" in Kinnaur and Kullu every year?); the addition of another 60000 MW in the fragile Himalayan eco-system cannot but add to further damage to rivers and their valleys, cutting down of lakhs of trees, adverse impacts on agriculture and livelihoods of indigenous peoples and tribals.

  Our INDCs also propose to sequester 100 million tonnes of carbon by bringing an additional 10 million hectares under forest cover by 2025. This has to be a joke, given our past performance in this area. According to the govt's own State of the Forest Reports, though our "green cover" increased by 3.3 million hectares between 1999 and 2013, the country actually LOST 10.6 million hectares of ORIGINAL, DENSE forests during this period. It is the latter figure and not the former which indicates our actual forest cover: the 3.3 million ha. is partly a sleight of hand( it includes commercial plantations of tea, rubber etc. not captured earlier), and partly mono culture plantations which have no ecological value whatsoever. Therefore, given that we lose about 600,000 ha. of virgin forests every year, there is no way Mr. Javadekar can add a million ha. every year for the next ten years, especially given the industrial route he is following in the exploitation of our natural resources. In a nut shell, therefore, our efforts in the hydro sector will simply ensure destruction of our ecology on a greater scale.

  If the objective of COPA21 is to guarantee to future generations  sustainable development and quality of living, then this neglect of the natural ecology is inexplicable. There can be no secure cobweb if its critical strands are removed. Paris must pay greater and immediate attention to the preservation of the earth's natural assets and features: there is little point in creating a "carbon space" at the cost of pillaging our ecology. India of all countries should realise this, not only because of the floods in Mumbai, Uttarakhand, Srinagar and Chennai, but because of our ancient civilisational values that worship Nature both as a Mother and as a God. For there can be no Plan B once we destroy the ecology. No one has posed the question, and the fear, better than the poet Mehmoud Darwish:

         "  Where should we go after the last frontiers ?

             Where should the birds fly after the last sky ?" 

   

HOW ISIS IS WINNING THE WAR

  One can't  help but notice the irony and Biblical deja vu inherent in the multiple tragedies playing out in the Middle-east. The region which gave birth to three of the world's major religions is now witnessing a carnage in which these three are doing deadly battle with each other. Islam appears to be taking on the other two faiths for supremacy but is mainly killing its own faithfuls by the tens of thousands! And the Biblical sweep cannot be missed either: the lure of the Promised land inducing an Exodus of millions for whom, unfortunately, the waters of the seas do not part but consume by the thousands. And now we see the beginnings of a new Crusade being mobilised in Europe.

  Only a fool, or a Nostradamus believer, would predict how this war of cultures will play out. The inter-play of personal rivalries, strategic considerations, economic interests and historical baggage has so far ensured that neither the Islamic world nor the Developed world are united even among themselves: how then will they ever join forces to take on the " enemy" whose definition in any case defies consensus? The Russians regard everybody other than Assad and Iran as their enemy. The Saudis consider all Shias as their enemy. The Americans and western Europe identify all who support Assad as their enemy. Iran is convinced that all Sunnis are their enemy. Somewhere in this maze of diplomatic confusion lurks ISIS, playing one power off against the other and gradually filling in the vacuum created by the competing disarray of the western powers, steadily expanding its empire. The Caliphate is not a defined territory, but an idea whose boundaries shift daily, like a viscous quicksand whose enclaves extend also to the ghettos of France, to Lebanon and Turkey, to the Sinaii. Militarily, therefore, the conflict is likely to continue for the indeterminate future.

  But the ISIS is winning the cultural and political war while the western powers persist in defending their individual interests. Consider the following:

  Islam is a proselytizing religion which consciously seeks to increase its numbers and spread its area of influence. The current refugee crisis in Europe is an indication that ISIS has been hugely successful in doing so. Its barbaric actions in Iraq and Syria will ensure that a million refugees, predominantly of the Muslim faith, will inundate Europe this year, with another million and a half expected next year. Physical barriers and panic driven legislation will not stop them for they have already lost everything: as Bob Dylan sang- " when you've got nothing, you've got nothing to lose." Whether or not there are any terrorists embedded among this multitude of the damned is irrelevant: their sheer numbers are enough to change the demography and culture of Europe in a few years. The Islamisation of Europe is well and truly underway, abetted by soft states and liberal societies.

  The political and administrative structure of Europe, already weakened by the financial crisis of Grexit, is buckling under the pressure of the refugees. The very idea of the European Union is unravelling: common borders are a thing of the past with each country setting up border barriers to stem the human flood; the Schenzen protocol is on its way out, its fatal flaw exposed by the ease with which the Paris terrorists moved between countries; the authority of the European Commission is being defied by member states on the matter of refugee quotas; the exit of Britain next year is now almost certain with the spirit of protectionism hardening every day.

  Western Europe is changing in more subtle, and more fundamental, ways too. Countries like France which have always prided themselves on their extreme liberal values-freedom of expression, privacy, keeping the state at arm's length, secular tolerance- are now being forced to reassess these tenets of democracy. The process had started with the Charlie Hebdo massacre and now has been accelerated after the downing of the Russian plane over the Sinai and the Paris killings. Security now demands a more intrusive state and a curbing of long cherished freedoms. The political repercussions of the ISIS attacks are also significant: moderate centrist parties are now being edged out by those on the extreme right, such as Britain's UKIP and Marie La Penn's National Front, who have consistently opposed immigration. The essence and ethos of western Europe is changing in accordance with the ISIS agenda, and this perhaps is the deepest cut of all.

  Organisations like ISIS, Al Quaeda and the Taliban feed on the Muslims' fear of oppression, discrimination and ghettoisation, and the panicked reactions in the west are adding to this fear, which is precisely what these terrorist outfits want. There is now a growing Islamophobia across the world, prompted not only by the terrorist attacks but also by the tsunami of refugees crossing the Mediterranean. Some countries have openly announced that they shall not accept Muslim migrants, an increasing number of US states have also declared that they will not honour Mr. Obama's pledge of taking in 20000 Syrian refugees. Even Mr. Donald Trump is finding a new resonance in his vitriolic opposition to any kind of immigration. Caught up in this mass hysteria and anger the developed world is losing its capacity to distinguish between Islam and terrorism, to recognise that the terror in Europe is not imported from Syria or Iraq but is home grown, to accept that it is social alienation, not the Quoran, that drives youngsters into the embrace of terrorism. They are hesitant to ask themselves that revealing question: Why is it that, with a population of just a few million Muslims, they have produced thousands of recruits for ISIS, when the 400 million Muslims of India and Indonesia have yielded just a couple of dozen? By not doing so they yield more ground to terror and make their societies more vulnerable- which is what ISIS wants. The war against this brand of terror cannot be fought only in Iraq and Syria: it will ultimately have to be won in the ghettos of Paris and Belgium, and Europe has to realise this sooner or later.

  ISIS may well- and probably will, now that a coalition is taking shape against it- lose the military and territorial battle. It should. But it has already achieved its objectives in large measure.  For the struggle has already moved beyond the middle-east into the heart of Europe and America, and it is there that the poison will fester. The developed world will never be the same again- its values, principles and standards of behaviour will undergo a transformation for the worse, a siege mentality will prevail, liberties will be curtailed, Islam will be reviled, and will find ever more recruits.

  Whose victory would you call it ? 

THE " CESS" POOL-- STOP THIS TAXATION THROUGH THE BACK DOOR.

   The government has given us our belated Diwali gift- a brand new Cess on all services. From 16.11.2015 we shall all now have to pay an additional 0.50% Cess on all services on which service tax is applicable. And this is not 0.50% of the service tax but 0.50% of the cost of the service. Most bills of daily services availed by all economic strata shall now go up- telephone/mobile, eating out, travel, all forms of insurance, TV charges, entertainment, etc.etc. This additional burden is the Swachh Bharat Cess ( SBC) which is intended to fund the Clean India mission. By itself the SBC may not be a back- breaker but the larger picture should give us some food for thought.

  Our Cess pool already has 20 Cesses, one of them dating back to 1953! ( Salt cess). We also have six surcharges. The five top Cesses in terms of revenue earned are: Road Cess( 2005, Rs. 43,100 crores), Education Cess( 2004, Rs. 26,677 crores), Clean Energy Cess ( 2010, Rs.13,118 crore), Secondary and Higher Education Cess( 2007, Rs. 1812 crore), and Research and Development Cess( 1986, Rs. 750 crore).

  You would be reasonable in presuming that since Cesses are essentially tax on tax, and of tiny percentages, they are not really a matter of concern- and you would be dead wrong! Sample this: In 2015-16, out of total tax receipts of Rs. 9.20 lakh crores in the central budget the various Cesses shall contribute Rs. 1.52 lakh crore, or 16.60%- one in every 6 tax rupees! The corresponding percentage in 1999 was 1.81. Its quite obvious that this virus has profligated promiscuously  in North Block over the last fifteen years, and if not stopped shall soon assume endemic proportions.

   Systematic taxation by Cess is abhorrent to any fair and enlightened form of budgeting. Originally conceived in Ireland to tide over a temporary exigency, under our scrounging mandarins it has simply become a permanent tax by another name. Fiscal fairness and logic demand that once that temporary need or situation is over the Cess should be discontinued. That never happens in India, as evidenced by the Salt Cess which has been around for  62 years, or the Mines Cess and the Beedi Workers' Cess which have been fattening the coffers for the last 40 years.

  Secondly, if the need for a particular Cess is felt to be of a permanent nature then it should be levied as a straightforward Tax ( which can be properly examined and debated in Parliament) and not squirreled away among the fine print of the budget papers. One reason why the central govt. is loath to do so is that whereas taxes have to be shared with the states, a Cess is retained by the centre exclusively. Its time the states woke up to this day light robbery!

   My most serious objection to taxation by Cess, however, concerns the manner in which these funds are utilised. Take just two of them: Construction Workers' Cess( CWC) and Research and Development Cess( RDC). The CWC is a joke-ask any construction worker, whose lot remains just as risky, impecunious and insecure as in 1996 when this Cess was introduced. Had the govt. used this money to start an insurance or health care scheme, or provide safety equipment, or creches for women labourers, or special schools for their children, in any meaningful way then perhaps we would not have complained about this imposition. But nothing of the sort has happened: of course, schemes have been formulated on paper, more offices opened and staff recruited, but the construction labourer remains at the mercy of the contractors, a pawn in an entirely unorganised sector which the government has failed to regulate but in whose name it taxes us ! 

  Almost one crore is collected as R+D Cess every year: where does this money go ? The state of R+D in this country with a two trillion dollar economy is pathetic in all fields- health, agriculture, industry, defence, manufacturing to name just a few sectors. Whatever research there is is being done by the private sector and the government has little to show for the thousands of crores it has been collecting for the last twenty years.

  The ugly reality is that the government has discovered that a Cess is an easy method of garnering funds to buttress its kitty and to bridge deficits in other sectors. Searching for figures of actual utilisation of dedicated cess receipts I found that in 2004-2005 it collected Rs. 5100 crores as Education Cess but spent only Rs. 2000 crore of it on Education. I would be very surprised if this was not the case also with other Cesses. In my view the CAG should carry out a dedicated audit of all 20 Cesses from their inception to determine how much was collected and spent under each Head- the results should be revealing.

  The Swachh Bharat Cess now imposed is another regressive form of taxation: it is expected to generate Rs. 1200 crore per annum and will hit the middle/ lower income classes the most. Its purpose is to clean up the environment. This raises an important question: should not core activities of the government be funded by the sectoral budgetary provisions rather than by imposing additional Cesses? Surely, Roads, Education, the Environment and Clean Energy are mainstream government concerns and should be funded by govt's tax/ non-tax receipts and not ad-hoc Cesses? The current year's budget already provides Rs.3500 crore for the Clean India Mission: where then was the need to pilfer another Rs. 1200 crore from the public? By constantly resorting to this convenient mechanism the government is actually abandoning the fiscal discipline inherent in the prioritisation of expenditure, and taking the easy way out-at our expense.

  We are told that the SBC shall be used to construct 120 million toilets to stop open defecation, a pure engineering solution that indicates that we have learnt nothing from the past. The UPA had also spent thousands of crores on such a scheme, resulting either in " ghost toilets" which were paid for but never built, or toilets that function as stores for cattle feed- and 600 million Indians continue to defecate happily in the open or on railway tracks! Experience in states such as Himachal Pradesh where the scheme has been fairly successful reveals that what is needed is overcoming age-old shibboleths that open defecation is healthy ( and even ordained by religious tradition!), convincing families of the clear connection between open defecation and child mortality and so on. One interesting statistic on the subject is contained in a 2005 study by the government: the percentage of Muslim families defecating in the open is 42% as against 67% for Hindus. the connection with child mortality?- child mortality rates are higher among Hindus than Muslims, according to an article dated July 19, 2014 in the Economist: 1.7 more Muslim children per 100 children survive to the age of five years than Hindu children. What is needed is not the pumping in of more and more money but a dedicated extension effort, which the government appears to be incapable of. It should be roping in grass-roots CBOs and NGOs for the purpose since it lacks the capacity itself, but is more busy issuing them notices and freezing their bank accounts.

  The same is the story with the cleaning up of the Ganga and the Yamuna: in the last ten years more than Rs.10000 crore and Rs. 3500 crore ( also collected from various surcharges and fees) have been spent in efforts to clean up the two rivers respectively, but they become more polluted every year. The problem is sheer incompetence, corruption, insensitivity to the environment and reluctance to take hard decisions. Just last week it was reported that the sand mafia in Faridabad/ NOIDA has built a sand BRIDGE across the entire width of the Yamuna!- and neither of the two administrations claimed to be aware of it. The government will not take the obvious decisions which alone can save these rivers- ban sand mining, stop the construction of more dams upstream, ensure a regular and adequate flow of water, stop immersion of hundreds of toxic-painted idols in their waters, prevent the encroachments on their floodplains, treat urban sewage properly. Why should it, when it is far easier to impose another Cess ?

  Its all about the money, honey!

    

THE NJAC DEBATE: PURPLE PROSE AND RED HERRINGS.

     If you thought that the discord over the National Judicial Appointments Commission( NJAC) and the sparring between the government and the Judiciary was about " independence of the judiciary" or "will of the people "- think again. From where I sit it is a simple contest for power: in a country where fiefdoms are assiduously carved out and fiercely protected since the days of the East India Company, one has to guard one's turf zealously to survive and what we are witnessing today is a reaffirmation of this primordial instinct. The battle is no doubt couched in politically and legally correct jargon: basic structure of the Constitution, sensitivity of the selection process, sovereignty of Parliament, separation of powers, tyranny of the unelected, and so on. But its about none of these: its simply about being numero uno at the top of the  heap.

   The Indian people want neither the tyranny of the elected nor the tyranny of the unelected- we want a judicial system that works and judges who are men of integrity and fairness. According to the Supreme Court this can only be ensured if the judiciary is " independent."- meaning, that judges can only be appointed by an amoebic process, i.e they self-reproduce without any external fertilisation. While this may be okay for protozoa it is certainly not adviseable for more advanced evolutionary species. It is my submission that "independence of the judiciary" in the matter of their appointments is a red herring that deflects attention from the real issues that need to be tackled if we really want judges who are free, fearless, unattached and honourable. To assume that a mere mortal system of appointments can guarantee these qualities is akin to believing that the moon is made of blue cheese, as the conduct and track record of many judges in the past have proved. True independence does not depend on who appoints you or from any fanciful separation of powers; it comes from a basic strength of character, self-imposed standards of integrity, a willingness to offer oneself for scrutiny and a commitment to one's vocation. Everything else is a red herring and an alibi.

   There are four  issues/ problem areas that need to be addressed:

   ONE. Abolish the system of appointing retired Supreme Court and High Court judges to Tribunals, Commissions, Lokayuktas and other sinecures. This is a self created system at which the Executive has connived with, for obvious reasons. There is no politically correct way to put this: the day a public servant( and judges are public servants too) seeks or accepts a post-retirement assignment he compromises his objectivity and it will be a very rare person who can buck this rule. The hand that feeds is rarely bitten. Most of these Commissions and Tribunals are by now permanent bodies and therefore these posts should be encadred and ONLY SERVING JUDICIAL OFFICERS OF APPROPRIATE SENIORITY should be appointed to them. For shorter duration bodies( such as Commissions of Inquiry etc.) too serving officers could be taken on deputation. In such a process neither category of judges would have to be beholden to anyone for the posting. The current system of appointing only retired judges smacks of patronage at both ends.

   TWO. Abolish the practice of recruiting 50% of the higher judiciary from the Bar. In theory this process is intended to tap into the best and most experienced legal pool so as to elevate the quality of judges in the higher courts, and in many cases it has done so. But it has also created another parallel system of patronage with both the executive and the judiciary presiding over it. It is no secret that political parties when they come to power seek to reward their favourite lawyers by such elevation, and the large number of relatives and associates of sitting judges appointed by this route indicate that such patronage is not limited to the executive only. Secondly, an eminent and reputed lawyer with decades of practice who is appointed to the higher courts cannot but bring with him the baggage of industrialists, politicians, corporations and other powerful people whom he has represented during his long career at the bar. Conflicts of interest are bound to arise in such cases and the mechanism of recusing one's self from a case is no solution. Thirdly, the most outstanding legal brains at the Bar have no wish to join the Bench in any case. They earn at one hearing what a Supreme Court judge perhaps makes in a year, they enjoy an equal status among the legal fraternity, and they even have the option of a political career ahead of them! For them its a no-brainer, and therefore the objective of attracting the best legal talent to the Bench is not even partially served. On balance, this is not a healthy system and should be replaced by promotion from the permanent judicial services. On the bench objectivity is a much more preferred quality than mere brilliance.

THREE. Create an all-India, national judicial service to attract the best legal talent from the law schools and the Bar to the judiciary: this will provide a uniform standard of dispensation of justice through-out the country, and prepare a nursery for selecting candidates for the higher judiciary. Currently, the brightest law graduates spurn the judicial services which are state level and start at fairly low positions, and where promotion prospects are severely limited by the practice of recruiting higher level judicial officers from the bar. An all-India service( on the lines of the IAS,IPS,IFS etc.) would remove these drawbacks and qualitatively improve the caliber of judicial services throughout the country. This has been talked about for a number of years but unfortunately neither the Supreme Court nor various governments have taken any initiative to push this idea forward.
   FOUR. Amend the Contempt of Courts Act to make it reasonable and less draconian. Judgements that effect the lives of millions of people should be able to be discussed, criticised and any shortcomings in them pointed out. This constitutes valuable feedback for the courts. Unfortunately, as the Contempt Act stands today, any such criticism could constitute contempt and be punishable. This insulates the courts from the winds of reality and, in the longer run, weakens their credibility in the eyes of the public: this in turn could affect their independence and autonomy. The Act should be limited to providing protection to judges, not their judgements, and to the enforcement of judicial orders. The best protection for the dignity of the courts lies in the wisdom of their judgements ( not in punitive legislation): the former ensures respect, the latter fear and distrust. A democratic institution cannot be founded on fear and distrust.

   These four reforms/ measures would do much more to strengthen the " independence of the judiciary" and free the government from the " tyranny of the unelected" than any system of appointments. They would also improve the quality of justice dispensed, which appears to be declining under both the appointment systems which we have tried so far. Let us lay this ghost of " primacy of appointments" to rest.  The ordinary citizen of India is fed up of cliches, of both the " committed" and the " independent" judiciary, and of the " will of the people" and "Parliamentary sovereignty".  How about giving us an   " effective" judiciary and a Parliament that simply works?    

JUDICIARY SHOULD STEP CAUTIOUSLY ON RELIGIOUS TOES

   I fully endorse judicial proactivism in a country like India where the elected executive is seen to be regressing into social obscurantism and lacks the will to set things right. In fact, in an earlier blog-post ( SOCIAL CHANGE- SUPREME COURT AS THE DEFAULT OPTION, July 2015) I had expressed the view that it is only the Supreme Court which is capable of driving meaningful social change in the country. There is, however, a caveat to this endorsement: in essentially religious matters concerning deeply held beliefs and centuries-old rituals the Courts should temper their reformist zeal with prudence and an understanding of the political-social-religious ecosystem in which they adjudicate. Such an understanding appears to be missing in the order of the Supreme Court ( 12.10.2015) directing the central government to take a quick decision on legislation of a Uniform Civil Code for all Indians.

  The intent and rationale of the Court is beyond question, for in matters of civil, gender and human rights all citizens should be equal and should enjoy the protection of a common and humane law. Any discrimination on grounds of religion is abhorrent to the concept of a modern nation. But what is equally beyond question is that society should be ready to accept and embrace such uniformity: it cannot be rammed down the throats of hundreds of millions of people by executive and judicial fiat without straining the social fabric to breaking point. And it is here that the problem lies with our country.

  Notwithstanding the Constitutional mandate India is not a secular nation. There is a persistent distrust among communities going back for decades, the result partly of historical legacies and partly of majoritarianism/ minoritarianism mindsets cultivated assiduously by all major political parties. There have been thousands of communal riots since partition. Figures released by the US State Department yesterday show that there were more than 800 " religiously motivated attacks" in 2014-15 . Governments wear their religious biases on their sleeves and unabashedly promote one religion or the other. ALL governments have pandered to religious extremists of all shades through bans, selective prosecutions, reluctance to enforce the laws, overturning court decisions,even dubious legislation meant to appease one community or the other. Just this year, for example, the Maharashtra government has tabled a bill- the Buddhist Marriage Bill- to provide for a separate marriage code for Buddhists! Concessions, quotas, subsidies and preferential treatment are doled out to communities under the pretext of affirmative action but actually to garner vote banks. Unlike a true secular state which distances itself from any religion, what we have in India is a state which is a cocktail of ALL religions and therefore unable to maintain the impartiality which alone can ensure the credibility of a government when legislating on common civil rights ( which is what the Supreme Court wants the government to do).

  And things are getting worse. In the last couple of years even the fig leaf of neutrality and ersatz secularism has been contemptuously thrown away. Even as tiny Nepal has become a secular republic after centuries of being a Hindu state, we are moving in the opposite direction. An aggressive and unapologetic majoritarianism by the ruling party at the center has instilled a deep insecurity among the minorities, further deepened by the strange fact that those who should speak are silent and those who should be silent have been given the license to preach hatred at every street corner. The agenda of Ghar Wapsi, Love Jihad, Beef bans, cultural intimidation, aggressive propounding of a perverted and unilateral brand of nationalism, and a rabid intolerance of any dissent has firmly driven a wedge between the two major communities already distrustful of each other.  An inevitable reaction by the main minority- the Muslims-is coalescing into what could become a dangerous face-off in the months and years to come. Not since 1984 have religious identities been so highlighted or religious sensitivities so aroused. If someone as erudite and genteel as Naseeruddin Shah can say on national TV that " for the first time in my life I have been made to feel that I am a Muslim in India" then we all need to worry.

  The country today is a tinder-box and the last thing it needs is a spark of socio-religious reform. The judiciary should be mindful of this context: it has not shown this sensitivity so far, as two recent judgements indicate. A couple of months back the Rajasthan High Court declared that the Jain ritual of voluntarily fasting to death, known as " santhara", was an attempt to commit suicide and therefore illegal. Santhara is a centuries old and honoured ritual among Jains: there are about 200 such deaths every year; those who choose to opt for it are the old or terminally ill who embrace it voluntarily. Something similar is also practiced by Buddhist saints and Hindu holy men ( taking " samadhi"). Moreover,  the Supreme Court has already asked the government to decriminalise attempted suicide and we are told the government is ready with a law for it. Should the Rajasthan High Court have shown such alacrity given this background? As expected, large scale protests by the Jain community have now led to the Supreme Court staying this unwise order.

  The same lack of sensitiveness was on display in the highly volatile state of Jammu Kashmir in September when the High Court there declared that consumption of beef in the state was illegal. The court should have sensed that something was amiss because the petition was reportedly filed by a BJP member from Jammu. It based its order on a provision of the Ranbir Penal Code of the state which did in fact make such consumption illegal. But the court should also have noted that this law was of 1858 vintage (!) when the state was ruled by a Dogra( Hindu) king, and that this law had effectively been superseded by the Constitution of India a hundred years later. It should have given some thought to the fact that 98% of the population of Kashmir consists of Muslims for whom beef is a staple diet, and that this particular provision of the RPC had never been implemented. Kashmir has many problems on its plate and the last thing one needs is to add a portion of beef to it!

  The massive outrage at this ruling ( it happened just before EID) was contained in the nick of time by the Supreme Court suspending the order of the High Court, but the damage to minority sentiments had been done. These two judicial pronouncements establish two important truths: One, courts should not go merely by the letter of the law (especially laws penned decades ago and which have been overtaken by a rapidly transforming society) but should honour its spirit; and two, on issues which impinge on religious beliefs and practises, the courts should acknowledge that ours is a deeply fractured society and polity and therefore the widest consultation must be held before deciding on such matters.

  This then is the eco-system in which the Supreme Court has passed directions to the government to get on with introducing a Uniform Civil Code. Legally speaking, Article 44 of the Constitution enjoins upon the government to secure a UCC to replace personal laws, but this Article is part of the Directive Principles of State Policy. In effect this means that this cannot be enforced in a court of law but the state shall have to adhere to them when making laws. It is my contention that the political and social climate is not right or conducive for such a law at the present time. Practically all non-Hindu communities are suspicious  and intimidated at the same time and any attempt at further eroding their distinct identities will only deepen the fault lines. Furthermore, the credentials of the present government at the centre are suspect in the eyes of the minorities, and any attempt by it to pilot this law will just not be acceptable to the latter.

  The Supreme Court should not be guided by the letter of the law in this case but should acknowledge that the time is not right for a UCC. Everything which is legal is not necessarily legitimate, as Nicholas Chamfort once said. For a law to acquire legitimacy it must be accepted by the people, and right now the Uniform Civil Code will be resisted violently. The government has to hold the widest possible consultations and remove all misgivings before such a law can be introduced. As long as we have just enough religion to make us hate, but not enough to make us love one another ( Jonathan Swift), let us do without a Uniform Civil Code. Its time will come. 

   

  

THE ACR OF GOVERNENCE

   The organisational structure of a typical governmental (bureaucratic) organisation has been famously visualised as a tree with officials perched at every level on it. Those at the top of the tree look down and see monkeys. Those at the bottom look up and see arseholes. It is this difference in perception, depending on your position on the tree, which dictates the essence of  Organisational Behaviour (OB) though this is not something you would be taught in a management institute. And it is this peculiar dimension of OB which has spawned that most ubiquitous and interesting of HRD tools- the Annual Confidential Report or ACR as it is known.

   The ACR, as we are all aware, is an annual assessment of the performance of the monkeys by the aforesaid arseholes, and is the former's weapon of last resort (or so they would like to believe). In actual practice, however, the ACR is more like a bikini in a beach-side beauty contest- it is a mere formality and not to be taken seriously, for the real action, as it were, lies outside its confines.

  No one in the government (except perhaps our gullible courts) takes the ACR seriously. For the Reporting Officer it's a chore because he has to write up a few hundred of them every 31st March (but it's also an opportunity to settle scores with the underling who didn't proffer that box of sweets last Diwali). For the Reviewing Officer it's a more agreeable task because he simply has to scrawl " I agree". The Accepting Officer (or Minister), the alpha male at the summit of the tree, doesn't even have to do that- he simply signs and goes off to play golf (or inaugurate a bridge that hasn't yet been built) while his PA puts a sovereign stamp on it.

  The ACR is supposed to determine the officers' postings and promotions. But since 95% of all officers are rated as Excellent and Outstanding (another monkey trait- you scratch my back and I'll scratch yours) the actual promotions etc, are based on seniority, which political camp one belongs to, and other variables; for example: lower Himachal or Upper Himachal, green cap or red cap, outsider or insider, acolyte of present Chief Minister or ex-Chief Minister, apple belt or kinnow belt and so on. The curvature of the spine also plays a part as also one's yogic skills, particularly a mastery of the SIR NAMASKAR, a bureaucratic variation of the SURYA NAMASKAR, performed every morning when the Chief Minister is entering his office. The SHOVE-IT ASAN, a variation of the SHAV ASAN also helps, on the premise that if your habit is to say "Shove it" every time a problem arises and do nothing, you can't be accused of taking a wrong decision can you ?

  One would expect from the above, therefore, that a typical ACR would be a dreary desert of drab prose signifying nothing. One would be right- most of the time, but not always. For occasionally these ACRs contain rare gems of wit and expression that can compare with the best in literature. It's like wading through a desert of arid persiflage and suddenly coming upon a cool and refreshing oasis. Over the years I and a friend have been compiling some of these "mot juste " and "suggestio falsi" comments: my friend will have to remain anonymous for he's still perched on that tree and vulnerable to the apes above him. However, since my arsehole watching days are, well, behind me, I can safely share them with the readers of this blog post. Here then are some of the comments we have compiled over the years :

*  He has a fine mind- in fact so fine that no mere idea could ever penetrate it. (I detect shades of TS Eliot over here- author).

* His men would follow him anywhere, but only out of curiosity.

*  He is a very quiet officer. He opens his mouth only to change whichever foot was previously there.

*  Since my last report he has reached rock bottom- and has now started to dig.

*  He sets low personal standards and then consistently fails to achieve them.

* He has carried out each and every one of his duties to his entire satisfaction.

*  [ About a PWD engineer]: The roads built by him are like the road to hell- paved with good intentions only.

* He has the wisdom of youth and the energy of old age.

*  This officer should go far- in fact the farther the better.

*  This man is depriving a village somewhere of an idiot.

*  He tours a lot, visiting his office occasionally.

*  He has a highly developed sense of right and wrong; this helps him to invariably choose the latter every time.

But my own personal favourite is this comment by a District judge in the ACR of his Reader :

"A very competent Reader- he writes beautiful judgements."

Now, surely, this is one bikini that reveals more than it conceals!   

OROP--THE MESS GETS BIGGER

   In my thirty-five years in government I have rarely seen an explosive issue being mismanaged as amateurishly as the OROP conundrum has been- and I've seen quite a few goof-ups, believe  me! Considering that successive governments have had forty years to consider the issue, one would have expected that they would have prepared a blue-print for their response-the give and take of all negotiations- and defused it long before the almost mutinous situation we have now reached. As someone said-sitting on the fence for too long makes the iron enter your soul ( and if the fence breaks other, more substantial things can enter places other than the soul !). This is what has happened to Mr. Modi's government, and to the Ex-servicemen Movement( ESM) too, for the latter's over vaunting ambition has messed up matters for it also.

  To begin with, both the Congress and Mr. Vajpayee's govt. were right in not touching the OROP demand with a barge pole- its a financial monstrosity which can, and will, bankrupt the country, has no parallel anywhere in the world, and defies logic. They were dead wrong, however, in not addressing the underlying issues and grievances which confer a semblance of justification in the demand for OROP. These include: anomalies in salaries/scales/promotions as compared to the civil services( of which the IAS is the generally accepted hated face!), not all of which can be justified, though some can; the deep distrust between the military and the political/ executive establishment; and most important of all, the plight of the ordinary jawan who retires at 35 with no other future prospect than to become a security guard in some agency, his years of training and fighting skills consigned to the dustbin.

  Mr. Modi had a chance to address this Herculean challenge, with his majority and unquestioned hold over both the party and the government. But he proved that at the end of the day he is just a politician, after all- better packaged and clothed, certainly, but with the fatal weakness of all politicians viz.-open your mouth first and think later. His thrice reiterated promise of sanctioning OROP immediately- on a battlefield, on an aircraft carrier and at the Red Fort- put the fat in the fire which has become a conflagration now. He forgot the cardinal truth which all politicians would do well to remember, one enunciated by Mario Cumo many years ago- " You can campaign in poetry but you have to govern in prose." The tragedy with Mr. Modi is that he didn't have to open his mouth at all because the campaigning was long over when he did so!

  As I had suggested in an earlier blog Mr. Modi should have ignored the OROP demand and done an outflanking manoeuvre by tackling the underlying issues. He should have asked himself the following questions:

*  Why is it that OROP has been allowed to only the elite few in the Apex scale? Since this is the main heartburn its abolition should have been considered seriously across the board, including Judges,CVC, CAG, UPSC Chairman, Cabinet Secretary, three and four star Generals and other entitled bureaucrats.

*  How do we compensate army officers for their restricted promotions due to the pyramidial structure of the armed forces? Why not allow some form of NFU to them also, that does not interfere with the chain of command- say, allow the next higher scale after a specified number of years even if it is not a promotion to that post ? This would have ensured that a Colonel. for example, retired in a Brigadier's scale even if he could not be promoted to that post, with all the ensuing pensionary benefits of the higher scale.

* Is it not a gross injustice, and a waste of a valuable national resource, to retire highly trained and disciplined soldiers at the age of 35 ? Why can we not absorb them against the 50000 odd vacancies in the para military forces every year, with their pay and seniority protected? There would be self serving opposition from vested interests within the PMFs, naturally, but this can be handled with a mixture of tact and firmness: of what use is an absolute majority in Parliament, after all ? Is it to be used only for the purpose of hiking the allowances of MPs ?

  If Mr. Modi ( and a suddenly silent Mr. Jaitley) had addressed just these three issues immediately on assuming office the current agitation under the able but inflexible leadership of Major-General Satbir Singh would have been a non-starter. There would have been no raison d'etre for any agitation, because correction of the anomalies listed above would have resolved 90% of the GENUINE grievances of the armed forces, and the assumed grievances should have been dismissed firmly. And all this would have been achieved at a far more bearable cost to the nation, and without creating the anomalous mess we are now saddled with.

  The government's short-sighted and hasty announcement of a truncated OROP  last week has satisfied no one. The ESM's agitation continues, General Satbir Singh draws more TRPs and eyeballs than Sunny Leone ( a bright political future undoubtedly awaits him), the ESM has splintered into different factions, making the task of negotiation that much more difficult, civilian employees through their apex body the NCJCM have submitted a memorandum to the 7th Pay Commission demanding OROP for all civil employees, the exchequer is poorer by 20000 crores this financial year and God only knows by how much in the coming years, the distrust between the government and the military has become wider, the armed forces appear to have mounted a disturbing challenge to the government. In an article in the Business Standard today Col ( Retd.) Ajai Shukla has stated that the ESM has " tasted blood" and will not back down. He has predicted that their next demand is already on the anvil- NFU for the military. The bureaucracy is no doubt preparing its own charter, including canteen facilities( termed OROB- One Rate One Bottle !), rank pay, Difficult Posting Allowance, free rations, and what not. Its going to be a hard winter of discontent for Mr. Modi's government and he has only himself to blame.

  Administering the right medicine at the right time is what wise governance is about. What Mr. Modi has done instead by his inept handling of the situation is to convert the HEAP BIG CHIEF into the HEAP BIG SHIT, and its about to hit the fan.

A ROAD BY ANY OTHER NAME.............( With apologies to the Bard)

  History, it is said, is written by the victors, and therefore Mr. Modi probably feels justified in rewriting the history of India, or ( to be fair to him) overwriting the rewriting the Congress has been doing for the last forty years. But all this literary calisthenics has left the ordinary citizen quite confused, to the point where we don't quite know whether we are a nation on the ascendent or on the decline, whether we are descended from the apes or the Gods, whether we are Aryans, Dravidians or just contrarians.

  The Congress has done its bit about rewriting history, but it has not so much rewritten it as ascribed it to a certain family- at least the more glorious parts of it. What the BJP- RSS combine is doing is much more dangerous: it is distorting it to align it with a particular cultural/ religious dispensation and censoring large parts of it in the hope that it will gradually disappear over a period of time. It began with the demolition of the Babri Masjid in the eighties and today is manifesting itself in the packing of national institutions with RSS ideologues, selective editing of school text books, and reworking the charter of 34 museums and memorials to incorporate current governance initiatives and Mr. Modi's achievements. This is specious at best and malicious at worst because museums are repositories of the past, not think tanks of the present. To serve the latter purpose Mr. Modi has enough institutions at his disposal- starting with the NITI Ayog- where he can legitimately gold plate his ideas. Why can't he leave the museums to professional historians and academics to document the past as it was, not reinvent it in the image of the BJP govt.?

  It is in this context that the recent renaming of Aurangzeb Road in Delhi as Abdul Kalam Road acquires significance. This is not an innocent faux pas, of the type we have come to expect of all Indian governments. It is a trial balloon. (There are, I learn, 177 other roads, towns etc. named after Aurangzeb in the country, and they would be next on the chopping block if the current experiment succeeds).

  Roads, buildings, institutions over time become part of a country's collective consciousness, and by naming them after historical personalities we embed the latter more firmly in that consciousness and sense of history. Unlike the artifacts in museums and the text in books these buildings/ roads become part of our daily lives and living culture- just think of our associations with Khan Market, Lodhi Gardens, Victoria Memorial, Chhatrapati Shivaji terminus, Gobindsagar, to understand what I mean. The sheer eclecticism and diversity implicit in these connotations from the past is what makes a country's history rich and fecund. Unfortunately, it appears that the present govt. is hell bent on replacing this diversity with a mono-cultural vision of the past and Abdul Kalam Road is the thin edge of the wedge.

   Apologists for the govt's action argue that Aurangzeb was was a mass murderer, a violent proselytsing Muslim, destroyer of Hindu temples: not a role model to commemorate. Aurangzeb is admittedly nobody's idea of a boy scout but any dispassionate historian will readily acknowledge the exculpatory factors in his bloody record. Any ruler has to be judged by the social, ethical and behavioural standards of his times, not by the values of 500 years later. In Aurangzeb's times it was sound real politic to put to the sword all rival claimants to the throne, just as today it is acceptable for Mr. Modi to exile Mr. Advani to the Margdarshak Mandal or for Mrs. Sonia Gandhi to have literally thrown the hapless Sitaram Kesri out of his office, all in similar circumstances: they just did things a bit differently those days. And haven't we also been doing our proselytsing bit with the Ghar Wapsi programme, also demolishing a few masjids and vandalising a few churches along the way? And this in spite of the Courts, Human Rights Commissions, Minorities Commissions and Arnab Goswami to rap us on the knuckles- conscience keepers whose benefits Aurangzeb certainly did not have. Who really are we to judge this grand Mughal who ruled over a realm larger than any of his predecessors?

  The BJP has further exposed its real intentions and thought processes by its choice of the replacement for Aurangzeb. It probably calculated that replacing one Muslim with another was a master stroke, leaving no scope for any criticism. In the process it has revealed its concept of what an ideal Muslim should be. Mr. Kalam was, to coin a phrase, a " secular" Muslim: he did not wear his religion on his sleeve, studiously kept away from any controversies on the subject, was not ostentatious about either his religious beliefs or practices, was not seen publicly to be pushing for any " affirmative action" on behalf of his community: his true religion was science. To that extent he was, according to the BJP's line of thinking, a model Muslim, the polar opposite of an Aurangzeb- and it is this model the BJP wants to promote. Not for it the raucous, constitution spouting, politically aggressive, justice seeking Muslims of Kashmir, UP and Hyderabad. ( Incidentally, not for it also the gentle, erudite Hamid Ansari, our Vice President, who had the temerity to suggest that the govt. needed to do more for the upliftment of this community) Which better way to promote  this model than by renaming the road ? The capital qualities of Dr. Kalam deserve to be emulated by adherents of all religions, but to obliquely hold them up as a yardstick for just one community is to diminish them, and the man himself.

  By this misplaced action the govt. has done great dis-service to Mr. Kalam: it has brought this gentle, humble man of science and letters to the centre of a controversy and a strategem he would have had no time for. How much better it would have been if the govt. had instead named a space mission, or an institution of higher learning, or a series of scholarships after the late President. The govt. would do well to stop tampering with either history or the memory of a man like Abdul Kalam, perhaps the last of a vanished breed. 

BLACKMAIL SIMPLICITER -- MORE BITTER TRUTHS ABOUT OROP.

   I may be out of step with the times, but I am convinced that what has been happening at Jantar Mantar in Delhi over the last two months exemplifies neither discipline nor loyalty nor patriotism, notwithstanding the vaunted claims by the Ex-servicemen League( ESM). There is a regular torrent of abuse( of the government, the civil services and politicians) and vilification flowing from senior ( retired) defense officers, and they have not spared even their Supreme Commander, the President of India- just yesterday he was sent a letter by the ESM holding him responsible for " any damage or mishap" that may occur to the hunger strikers, and accusing him that "under your rule a soldier's life is at stake....". So much for devotion to the country.

   There is more. The tone and tenor of their statements ( and that of some retired Chiefs who, having compromised themselves earlier by quietly accepting OROP for themselves and dumping their " boys", really have no moral right to protest now) are becoming noticeably menacing and threatening. One day we are warned that the ESM is in touch with serving soldiers and heaven help the country if disaffection spreads to the armed forces. The next day we are told that helping the civil administration in case of natural disasters is not the army's job, and what will the govt. do if this assistance is denied? A retired Chief cautions the govt. on television that these guys are not trade unionists but soldiers, that they know how to fight and will not back down. To me this is coming uncomfortably close to incitement and downright blackmail.

  And then there is the final irony- a group of ex-soldiers who claim to be totally apolitical now indicating that they could jump into the Bihar election to muster support for their cause ! Make up your minds, gentlemen- are you ex-soldiers or an aspiring political outfit, which is what you are increasingly looking like with your rebellious statements and open defiance of the govt.?

  As I've categorically stated earlier ( THE BITTER TRUTH ABOUT OROP) there is a strong case made out for compensating soldiers for their early retirement but this is limited to the jawans and ORs, not the officers. The former retire between the ages of 35 and 38 and constitute 85% of the total strength of the armed forces. The officers have it much better- every commissioned offer retires in the time scale of a Colonel at 54, and then has the option of 4 years of reemployment within the force itself. He effectively retires, therefore, at 58 ( as against 60 for the civil services, not such a significant " discrimination" as the ESM is making it out to be), with the full notional benefit of 33 years service for computing his pension. Even these two years are the result of the doctrine of having a " young army" and not because of any conspiracy by the govt. to keep the army subjugated, as is being constantly made out by ESM. The sheer nature of their job demands a degree of physical fitness that declines with age. Take the converse- Doctors and Professors in higher medical and educational institutions retire at 65 because in their case the primary consideration is not physical fitness but intellectual ability and acquired expertise. Nobody- not even the IAS!- grudges them this because the rationale is reasonable. It is the same with the armed forces.

  The ESM has been very economical with the truth when it talks about discrimination with the armed forces in the matter of pensions. It fails to mention, acknowledge or accept that the govt. has already provided them with a massive advantage over the civil services. Civil service officers who have joined service on 1.4.2004 and thereafter are no longer entitled to assured pensions from the govt. They are now enrolled in the NPS ( National Pension Scheme), a fund to which both the employee and the govt. contribute a fixed percentage of salary every month. The pension payable depends on the profits generated by the NPS fund. In other words, there is no longer an assured percentage of pension for civil employees. BUT THE GOVT. HAS KEPT THE ARMED FORCES OUT OF THE NPS-THEY CONTINUE TO ENJOY THE BENEFIT AND SECURITY OF ASSURED PENSIONS. Be honest to yourself at least, Generals, if not to the country.  

  Another myth that needs to be busted is that armed forces officers are denied the promotions that their civil counterparts are entitled to. I personally agree that the promotion bandwagon in the higher civil services has gone berserk and this self serving policy needs to be drastically pruned. But this does not render the ESM's claims for a similar absurdity in their case legitimate. For the same reasons of operational effectiveness the army perforce has to have an acute pyramidal structure, which naturally puts limits on promotional avenues. This is an imperative of the service which all the members of the ESM were doubtless aware of when they joined NDA or IMA. Why try to smuggle this demand through the backdoor when you entered from the front?

  The same logic applies to the constant outcry about hardship postings, non-family stations, casualties etc. It goes with the territory and the uniform, which is why the armed forces are respected. These conditions are not peculiar to the Indian army either but are part and parcel of all armies across the world. In fact, service conditions are much worse in the police and the CPMFs. The govt. has been making attempts to compensate for some of the harsher conditions by providing generous allowances, which the ESM is not factoring in in the discourse. It does not behove a fine and proud armed force like ours to constantly wail about these things. After all ours is not a conscripted armed force but a voluntary one, and if you can't take the heat don't enter the kitchen.

  In fact, it is now clear that the officer cadre is riding piggy back on the jawan to extract the maximun benefits for themselves. It now appears that the jawans and ORs( including the NCOs and JCOs) have seen through this game: it was reported yesterday in the Hindustan Times that the ORs have now decided to float a separate body called the All-India Ex-servicemen ( AIE), and this is what their co-ordinator Bir Bahadur Singh had to say: " The OROP movement has been hijacked by the officers who normally have been given lots of advantages. It is our legitimate rights that have never been taken into consideration."

  This is a significant development, and the central govt. should take note of this, because it brings the spotlight exactly where it should have been focussed all these days- on the jawan. It is precisely at this level that the healing touch and correction/ rectification measures need to be applied ( and not through OROP, which is a diversionary smoke screen). Not that the govt. has not made attempts to do so in the past. A little known fact is that till the Third Pay Commission a jawan served only for 5 years and was not entitled to any pension. ( INDIA TODAY, August 17, 2015). It was only in 1973, on the recommendations of the TPC, that he was not only given a tenure of 15 years but also made entitled to pension. But much more needs to be done, because he still retires at 35.

  The solution, as I've been maintaining, does not lie in the easy and financially disastrous OROP formula. A country which gives 50% pension to an individual for 50 years for having served for 15 years cannot but be both intellectually and financially bankrupt. The best solution to this vexed problem is already on the table before the govt.- lateral induction into the police and CPMFs. In fact this was suggested by the Sixth Pay Commission but the central govt., no doubt under pressure from the police and CPMFs, chose to ignore it. Opposition from the latter is to be expected for a number of sordid reasons for which one does have the time here, but Mr. Modi has to override his bureaucracy and political colleagues and implement this recommendation of the SPC. It will at one stroke remove the just grievances of the ORs and jawans, improve exponentially the image and effectiveness of the police and CPMFs, eliminate the need for any OROP, prevent a similar agitation by the civilian employees, save the country thousands of crores and ensure we do not go the way of Greece.

  It is time for the ESM to back down and enter into meaningful dialogue with the central govt., show some flexibility, and cease putting themselves on a pedestal. They say they are not trade unionists but are behaving exactly like them. Stop this blackmail, for it is engendering indiscipline and tarnishing the image of the Indian soldier which we hold in high esteem. Discuss with the govt. the real issues that bedevil the jawan and do not try to feather your own nest by using him as a proxy. Don't try to bankrupt a country you have sworn to protect.

  As for Mr. Modi, we have been waiting for 16 months for him to show some real leadership. His time starts NOW.

THE BITTER TRUTH ABOUT OROP

   The current debate about OROP ( One Rank One Pension) has become infused with too much passion, emotion, recriminations, frustration and downright prevarication. This, though perhaps understandable, is not healthy because it tends to blur and take the focus away from the hard issues involved, and prevents a rational analysis of the problem. The plain fact is that OROP is just not implementable, and the sooner the Govt. comes out with an open admission on this, and stops leading the defence forces down the garden path, the better.
   The govt. consists of scores of departments( of which the armed forces are also a part), thousands of categories of posts and hundreds of pay scales/ ranks. Their remuneration, promotion avenues, pensions have been arrived at after decades of deliberation and many Pay Commissions. There are intricate linkages between them ( called " equation" in govt. parlance): the whole structure is like a huge spider web in which all the strands are inter-connected, and disturbing just one cobweb destabilises the entire structure. The demand for OROP threatens to do exactly this, and this is why the govt. is unable to take a decision on this controversial issue.
   The basic premise of OROP is inherently flawed. One's pension is inextricably linked to one's salary at the time of retirement and not to the salary of the same post twenty years later. That is why Pay Commissions, every ten years, do not link past pensions with current salaries but provide a percentage growth to those pensions. This is true of not just the armed forces ( as some may think) but of the entire govt. structure, including ALL civilian posts- with one exception.
   This exception is the " causus belli" or the root of the problem. Many years ago the IAS contrived a sleight of hand( at which we are past masters) to ensure that the highest echelons of the elite civil services, at least, get the benefit of OROP ! This is how it was managed: the highest pay scale in govt. ( currently) is Rs. 80000/ fixed. ( only the Chiefs of the three defence forces and the Cabinet Secretary are in the fixed scale of Rs. 90000/.) It was decreed that all who retire in this scale( known loftily as the Apex Scale) would get OROP- that is, their pensions would always be linked to whatever revised Apex Scale the subsequent Pay Commissions decided. Since every single IAS( or IFS) officer retires in the Apex Scale this forever ensured OROP for themselves. To reduce any opposition to the strategem, some Apex Scale posts were also made available to other All India services.
  The top brass in the armed forces were also party to this decision, for they also got a share of the pie. Take the Army. The Apex Scale has also been provided to the VCOAS, Army Commanders, Lt. General( NFSG) and one third of the total strength of Lt. Generals in the force. The same applies to their counterparts in the other two forces. This may perhaps explain why we have not heard the top echelons of the forces coming out in public support of the demand for universal OROP.
   Giving OROP to just the Apex Scale was a bad and inequitable decision, and all the elite civil services and the armed forces were party to it. So, don't just blame the " babus" please.
  The chickens have now come home to roost and they're making quite a racket over it, as chickens will do. Extending OROP to just the defence forces is neither fair, nor possible. It is not fair because, emotive claims apart, they are not the only ones serving the nation- the primary school teacher in a Naxal village in Dantewada is also doing so, the coal miner spending twelve hours every day in the pitch darkness of a flooded mine in Jharia is also doing so, the fireman rushing into a burning building in a Mumbai slum is also doing so. Nor does it help the cause to quote statistics about the number of caualties- the para military forces and some state police forces have consistently had higher casualties than the army over the years. Demanding a special dispensation on the basis of an exclusive claim to patriotism is never a good idea- it has tinges of a hubris that does not go well with the concept of selfless service.
  The acceptance of the OROP demand is also not practically or legally possible, because it cannot be limited to the armed forces only, and any extension to other services and departments will bankrupt the govt. for all times. The stirrings have already started- the Central Para Military Forces, the Railway unions, some Associations of central govt. Ministries- have already given ominous hints that if OROP is allowed to the armed forces it cannot be denied to them. So we're no longer talking of just 22 lakh ex-servicemen and 6 lakh widows- we're talking of tens of millions of central and state govt. employees. We're no longer looking at a financial implication of Rs. 8000 crores but ten or twenty times that. Its a no brainer.
  And yet there are some aspects of the demand of the armed forces that are legitimate, that are peculiar to them, and which any sensitive govt. has to consider sympathetically. The primary one for me is their early retirement ( especially for the jawans and ORs) and subsequent unemployment with relatively low pension rates. The solution to this vexed imbroglio has to come out of the box and not from any manual of the finance department. Although it is certainly presumptuous of me I would make so bold as to suggest the following steps as an alternative to OROP:

*  Eradicate the root and genesis of the problem--- abolish the OROP benefit provided only to the holders of the Apex Scale and cover them under the same formula of pension as applicable to others. This may occasion some resistance from about twenty thousand or so of our plastic frame and a few defence brass but it would remove the heart burning of many millions of others and restore equity.
*  Provide higher pay scales to members of the armed forces to compensate them for their shorter service tenures and lack of promotion avenues. In order to do this the bureaucracy should once and for all give up the specious notion of maintaining "equations"- there are no equations between apples and oranges.
* Increase the gratuity available to ORs and jawans.
* Provide 50% reservation for jawans and other ORs in all central para-military and state police forces at appropriate levels. Not only would this single measure provide gainful employment to them for another 25 years, it would also considerably enhance the image and effectiveness of these forces because of the sterling qualities of discipline and integrity which these ORs would bring with them. I calculate that there would be about 30000 retirees from the army every year- the annual vacancies in the para-military and police forces would be many times this number, so adjusting the former should pose no problem. Ex-servicemen Directorates already exist at the Centre and in the states and they can maintain the data of retirees and forward the names against requisitions.

  OROP is a mirage which will never materialise. If the lot of our ex-servicemen is to be improved and their obvious career disadvantages compensated, suggestions like the above have to be considered. Mr. Modi should learn a thing or two from the armed forces- instead of a head-on confrontation with them he should execute a flanking manoeuvre. 

INDIA'S DYSFUNCTIONAL LEGAL ECOLOGY CANNOT SUPPORT CAPITAL PUNISHMENT

     This is not an article about the religious, moral, retributive or utilitarian basis for opposing the death penalty. This is also not about Yakub Memon or the arguments for and against his hanging. This is not about terrorism, or Pakistani/ Isis  inspired terrorists. It is not about the Mumbai riots or the Mumbai bomb blasts, either. It is not about Islamic terror or Saffron terror or about other convenient labels that make for animated discussions in TV studios or Parliament. It is about our legal eco-system and its fitness and professional integrity to qualify it for putting people to death. Muslims, Hindus and Sikhs.

     Such a health check is necessary, because at this very moment 1617 condemned human beings are awaiting death in our prisons. I'm guessing that the majority of Indians would say that they are dangerous to society, like a cancer, and like any cancerous growth must be excised from our body. An apt simile, no doubt, but it must be remembered that carcinomas are removed on the basis of irrefutable, scientific, proven evidence- not on assumptions, subjective surmises and arbitrary guidelines. If I could have the same faith in our legal system that I would have in a diagnosis of cancer by a competent medical institution, I would not be having the doubts about capital punishment in our country that I have today.

     Added to this is a mounting pile of evidence across countries that makes the sheer finality of this sentence blood-curdling, forcing us to think again whether we are omniscient enough to play God. The latest findings of the National Law University, Delhi clearly prove that the death penalty is disproportionately applied to the marginalised, the poor and the minorities. This is also the evidence in the United States where a black is three times more likely to be executed than a white. And the real chilling finding, by the National Academy of Sciences in the USA: that at least 4% of capital convictions were found to be totally wrong! This figure is bound to be many times higher in a country like ours ( for reasons given later in this article), and therefore is bound to raise the question: is our legal system so perfect as to permit us to kill other human beings in cold blood ?

     A legal eco-system consists of three layers: the LEA( Law Enforcing Agency), the Judicial System and the Government. The first carries out the investigation, the second conducts the trial, and the third legislates the laws, including mercy petitions and pardons. It is my submission that all three are so badly flawed in India that we might as well toss the ( loaded) dice to decide who gets to hang.

     The LEA first, which means the police. Today in India NO ONE trusts  police investigation- not the govt., not the opposition, not the public, not the judges. The trend is to demand a CBI investigation into every major crime, and not without reason, for state police investigations are perceived to be guided by money, political expediency, career progression and increasingly now by TV debates. The whole effort is to quickly nail the most convenient candidate, and not to get at the truth: this is not a hypothesis but a fact, as the abysmal conviction rates demonstrate. They can ( and do) steer investigations into letting the guilty off the hook ( as the unfolding Vyapam case and the burning to death of a journalist in UP, allegedly at the instance of a Minister, shows); or in framing innocent persons, as evidenced in the Pandher and the Arushi murder cases. The most blatant example of this, of course, has to be the Hashimpura mass murder of 40 Muslims by the PAC- after 33 years all 21 accused policemen were let off for want of evidence! Evidence is created or destroyed, witnesses are intimidated or bought off or even killed, as the Vyapam and Asa Ram cases have shown, post mortems are manipulated, records are conveniently lost. What ultimately lands up in courts is either a deliberately weakened case or a concocted one. To condemn someone to death on the basis of these types of investigations is, to me, a crime no less than the one the person is accused of.                                                                                                                                                                The LEAs are ever willing to pander to political influence and go slow in the investigation of cases the govt. of the day finds inconvenient, even cases involving terrorist activities and large number of deaths. The Samjhauta blasts, the Malegaon bombing, the Mumbai riots of 1993, the massacre of Sikhs in 1984- these are prime examples of how the police can be used to protect mass murderers from the death penalty. Inevitably, in a few more years all evidence will have disappeared ( this has already happened in the Sikh killing cases) and everyone can live happily ever after.

 This is not to say that that all police investigations are tainted or flawed; many convictions must be correct- but that is not the point. The point is that, once the credibility and fairness of a process is irretrievably damaged, all its outcomes become suspect.

Our judicial system is only marginally better. The growing perception among the citizens ( one voiced by many eminent jurists also of late) is that the kind of justice you get is dependent on your political clout and wealth, which only can ensure the marquee lawyers who can sway the courts. How else does one explain a Salman Khan getting bail in a matter of hours, a Jayalalitha's conviction being stayed with the same alacrity, a Nanda walking free after only a couple of years inspite of deliberately killing a number of people and destroying evidence, an eminent lawyer continuing to practice inspite of being caught on tape suborning and influencing witnesses in an important murder case ? The list is endless.

The fairness of our trial system is tested in other ways also, and found wanting. One expects judges to be proactive in sifting through the quality of evidence in at least important cases relating to murder and rape, especially given the stratagems adopted by the police. One rarely sees this happening, or any application of mind. The most telling illustration of this were the Jessica Lal and Nitish Katara cases, in which the accused would have just walked away had it not been for the sustained pressure by the media and civil society. Thousands of other similar cases probably just drop through the cracks in the judicial system, unnoticed.

Equity is lacking also in the manner in which cases are taken up for hearing, leading to justified suspicion of pick and choose. Why is there still no closure in the Uphaar fire case in which dozens died due to established negligence, even 18 years later ?- the Ansals got a paltry one year sentence ( yes, for proven negligence leading to the death of 67 persons!), and even that is being appealed in courts and there has been no date given for two years! Why is the Supreme Court unable to find time to dispose off the appeals of the Nirbhaya convicts, a case which the govt.had promised to fast track, even though it has time for the Chautalas and Sahara Shris ?  I suppose justice is being done but it certainly does not appear so, and perception is all that matters in the dispensation of justice.

These murky waters have been further muddied by the Supreme Court in a few judgements relating to capital punishment. I refer to the " rarest of rare cases" doctrine and automatic commutation of death to life imprisonment in cases of delay in deciding mercy petitions. Though well intentioned, these orders display a tint of hubris and confound an already confused subject. They introduce a discretion, subjectivity and arbitrariness into a process already lacking in transparency and equity. And they're not working. The Supreme Court has itself admitted that seven of its death penalty orders were erroneous, contrary to the rule of the rarest of rare and were incuriam. If death penalty is to be given only in the rarest of rare cases then how come 1617 people have been condemned to hang in just the last fifteen years ? Why should my life depend on the discretion of a judge who may be having a bad day, or just doesn't like my face ? A Supreme Court or a High Court judge may use his discretion wisely , but can we expect the same from every Sessions judge holding court in a hinterland steeped in casteism, family rivalries, criminalised politicians and obscurantism ? It is precisely this kind of subjectivity which enabled Dara Singh to escape the gallows even though he had locked up a missionary and his two minor sons in a car and then set it on fire, roasting them alive. This cold blooded murder cum infanticide was not deemed to be a rarest of rare case. Some degree of discretion in law is inevitable but the constant effort should be to minimise it, not increase it as the Supreme Court has done.

Even more subversive of justice is the doctrine that delay in deciding mercy petitions shall lead to commutation to life. This short-sighted fiat has thrown open the doors of discretion to the govt., one agency which can NEVER be trusted to use it wisely or fairly.

The govt. is the third layer in the justice system and one more concerned with the politics of justice than its equity or fairness, It has used the doctrine of delay to the hilt for its own political ends, whether at the centre or in the states . Its shameless misuse for political ends has ensured that the killers of an ex- Prime Minister have been granted commutation( and may even be released prematurely if the Tamil Nadu govt. has its way), and that the killers of Beant Singh may well receive the same relief. Furthermore, the govt. has the discretion to decide one mercy petition and keep the others pending, depending on who it wishes to hang and who it wants to save. Petitions should be disposed off according to their place in the queue, but that's not how the system works: the petitions of Kasab, Afzal Guru and Memon were all made to jump the queue and quickly decided( rejected) with the last being taken PERSONALLY by the Home Minster to the President at night, while other, older ones are still pending. This is unscrupulous manipulation of a dubious doctrine to begin with.

    This then is the reality of the larger criminal justice eco-system in India. It is plagued with inconsistencies, corruption, opaqueness, subjectivity, discretion, cronyism, hubris and plain gutter politics. It shows no mercy or compassion to the poor and disadvantaged, indeed, it singles them out for its own brand of justice. Even in the best of societies, as Faiza Mustafa noted in a recent article, " human judgements are never so certain as to permit society to kill a human being judged by other human beings." To permit it in a fractious and dysfunctional society like ours is an abomination. All reasonable Indians should strive to ensure that we join that group of one hundred nations which have abolished Capital punishment. We should not play God, especially when there will never be a consensus on whose God is the right God.